Category: Law

I, for one, am glad to see some renewed debate about if/when/how Australia will eventually become a republic.

I’m really keen that when we do, we do it in a genuinely post-colonial way. We are not now a post-colonial society.

In December I shared my submission to the parliamentary inquiry into proposed amendment of section 44 of the Australian Constitution, the section which caused such angst with dual citizens. I argued that this could only make sense in the context of broader reform including becoming a republic.

Lately I’ve seen some opinion pieces (unfortunately a few behind paywalls which I can’t afford) which have been highlighting the need for recognition as part of a republic process. This is in response to the rejection of the Uluru Statement by the former ardent (now tepid) minimalist republican PM Malcolm Turnbull.

Naturally I agree with these sentiments. I ran in the election for the Constitutional Convention in 1998 arguing for republican constitutional reform that included genuine recognition (the best I can say of that campaign is that 1) unlike my two tilts at local government, my mum was happy with it and 2) I didn’t come last).

My dream for us, though, is for more than a passive acknowledgement of one another. It is for an active embrace.

A couple of things I learned a while ago

The photo above is of the back of a t-shirt I bought when I attended the Garma Festival on Yolgnu country back in 2001. I was working for the Aboriginal Legal Service of Western Australia at the time, and attended with our then President, Ron ‘Doc’ Reynolds.

The academic program for that year’s festival was on criminal law and justice. There were national Indigenous leaders from around Australia, eminent jurists from around the country, leading academics and a very freshly elected NT First Minister, Helen Clark, flew in to give one of her first public speeches.

In the plenary sessions, though, I was struck by the contribution of a particular Yolgnu elder.

He stood in front of legal and political luminaries and junior servants of the struggle like me and let us know that some fundamental British constitutional principles, imported into Australia, were comparable to principles in Yolgnu government.

So, for example, the Yolgnu word used to name the academic program, Njärra’, he informed us, referred (in one usage) to a law-making meeting akin to a parliament.

He argued that at another time elders would meet to apply the law, in the manner of a court.

His point was that these two functions were distinct in Yolgnu government: there was a separation of powers.

Around a fire one night I had a conversation with a young elder, and we spoke about the dynamism of Yolgnu law. In particular, he highlighted that once the Yolgnu had practiced capital punishment for severe crimes, but that they had been persuaded by arguments that no government has the right to take one of its people’s lives.

They hadn’t been persuaded because Anglo-Australian law prohibited it, he was very clear. After all, Anglo-Australian law prohibits all forms of corporal punishment and we know that however dynamic Indigenous criminal sentencing has been over the past century it hasn’t abandoned corporal punishment altogether.

No, his point was that Yolgnu lawmakers had been persuaded of the ethical basis for abandoning capital punishment.

It was at that festival that I met and had a chance to hang out with Marcia Langton a bit.

I floated with her and a colleague of hers from Melbourne (whose name, I regret, I’ve forgotten) a few thoughts about the debates I’d been listening to at the forum. She invited me to talk about those ideas at a forum, so I did, and the gist of these ideas is what I’m posting about today.

The idea of legal pluralism is a colonial solution

Discussions of Indigenous customary law in Australia have centered around the idea that we can recognise different customary legal processes as sitting aside Anglo-Australian law and procedure.

This has been referred to as legal pluralism: the operation of a dual legal system with Indigenous customary law a secondary or subset system.

This isn’t too weird an idea in Anglo-Australian law, as it turns out. To a certain extent some religious organisations are permitted to apply theological laws to their members, for example.

Yet the notion of Indigenous Australians having legal processes of their own has, historically, rubbed a lot of non-Indigenous Australians the wrong way.

That’s explicable given Australia’s really terrible racist past.

For me such a pluralist approach is inadequate because it’s such a missed opportunity.

It places the legitimacy of First Peoples’ law as within the power of the Anglo-Australian system to grant or withdraw.

And it doesn’t adequately reflect the very real shared values between First Peoples’ societies and imported Anglo-Australian society.

Embracing those shared values is the incredibly exciting opportunity that becoming a republic can enshrine.

So, here’s my pitch for constitutional reform and a genuine post-colonial Australian republic.

The constitutional and legal systems of Australian First Peoples and the British system imported here have a great deal in common.

Our law making bodies are constituted as distinct from our judicial bodies even if, in the case of some First Peoples, the same elders sit in a law making body and a judicial body.

In terms of the laws that are made, there are common principles.

There is property (the most important being land) that is common and property that is private to families and individuals. In Anglo-Australian law we refer to that nominally commonly owned land as Crown land, because it is actually owned by the Queen of Australia.

There are crimes against persons and crimes against property and those crimes are punishable according to established sentencing norms.

There are laws governing families and the care for and protection of vulnerable members of those families.

Historically, First Peoples’ laws governed trade between First Peoples and, in the north of the continent, trade with peoples of what is now Indonesia, Papua, South East Asia and, potentially, China.

And, perhaps most relevantly to the next part of this post, both Anglo-Australian and First Peoples’ legal regimes established protections for the culture and heritage transmitted from our respective ancestors.

It’s not just about recognition

The big hole, as far as I can see, in the form of recognition proposed by the Referendum Council was that it didn’t include recognition of the legal systems that existed prior to colonisation let alone talk about the shared values which ought to be celebrated in our constitution.

These shared values can be built into the constitution of our republic in a comprehensive way (say, including designated seats in parliament), but let’s just start with the Preamble.

We have to reject the arguments of conservative constitutional lawyers that changing the Preamble may alter the meaning of other sections of the Constitution.

Yes, it will. That’s the point. And that’s a good thing.

I’m not presumptuous enough to suggest the actual words of a Preamble. Just presumptuous enough to suggest the ideas it could cover.

Here are the kinds of sentiments that represent my thoughts, for what they are worth, on a foundation for future harmony.

For tens of thousands of years Australian First Peoples governed societies according to complex systems of laws.

Over two hundred years ago, British people began to impose their system of laws on the land and, gradually, Australian First Peoples.

The British were not invited and their advancing control of the continent was resisted.

We, contemporary Australians of all backgrounds, wish that our ancestors had respectfully collaborated to manage approved migration and the creation of communities governed by a shared understanding of the law whose wealth was exploited to the benefit of all according to their rights under the law (it probably would have avoided lots of contemporary social problems if we had).

It is too late for permission to migrate to this continent to be sought or granted, and many of the peoples whose permission would have been applicable have been obliterated by colonisation.

Living generations are only ever custodians of an inheritance we must understand and enhance for generations yet to come.

The descendants of migrants and those fresh to this country ask remaining First Peoples for forgiveness for the crimes of the past.

The remaining First Peoples forgive those crimes.

Australian First Peoples and those who have migrated here share common values about how we wish to be governed.

Together we wish to establish an Australian self-determination that celebrates those shared common values.

We value a system of government that enshrines the separation of executive, legislative and judicial powers.

We value a system governed by the rule of law.

We share values concerning property that is owned in common by all Australians and land that is owned by citizens, including citizens who own land collectively.

We share values concerning prohibitions on crimes against persons and property.

Etc. (insert further shared values)

Under this constitution we declare that our respective unique and distinct heritages of government and law are unified to create a new, uniquely Australian republic.

That’s the general idea, anyway.

Oh, and one more thing (for now)…

If, in thinking about a federal division of powers, we could replace the States, Territories and local government with provinces roughly aligned with the old Aboriginal and Torres Strait Islander Commission Regional Councils (but which don’t slavishly follow the colonial State borders) that’d work alright I reckon.

Late last year I wrote about how my pacifism means I can’t totally subscribe to anarchism.

To recapitulate –

Anarchism includes the right to exercise autonomous violence.

My desire to live a life of non-violence in a violent world requires me to (at least) implicitly licence others to exercise violence in my defence if necessary to protect me from other people’s violence.

This means I have to give up certain things (principally some money and some freedom) so that the state – which is the manifestation of a collective interest in arming some of our citizens to protect us from other citizens who are disposed towards violence – can exist.

All of which leads to a system of laws to govern the terms under which resort to violence by some is permitted by those of us granting the licence.

Now we’ve found law(ful violence), what are we going to do with it?

Violence exercised on our collective behalf should be for a lawful purpose.

We must have a system in place that monitors the violent practices of those holding the licence (namely, in civil society, the paramilitary wing of the state called ‘police’).

I wouldn’t be a police officer for so many reasons, chiefly because I abhor violence but also because there are a number of laws I don’t agree with and which I wouldn’t want to be duty-bound to enforce with violence if necessary.

Those in the state’s paramilitary accept that duty, and I’m thankful for their protection.

In short, our remaining freedoms include the freedom from fear of arbitrary (unlawful) violence and the freedom to apply the law equally to those licenced to enforce it.

A large part of why I became a lawyer is a desire to protect people from unnecessary application of laws, from excessive punishment under the law, and from arbitrary exercise of otherwise lawful power.

And having become a lawyer, not just a subject of the law but an officer of the court, is another part of the reason I’m not an anarchist.

Anarchism, rules and freedom from state intervention

It’s pretty hard to uphold your duties as an officer of the court – the judicial arm of the state – while arguing that people should create for themselves the conditions of how they relate to one another free from the constraints of laws created by a state and enforced by that state.

There’s a limit to how far advocating those kinds of state-free relationships can go, particularly if anarchists want to form relationships or engage in conduct that actively undermines the state.

But at essence, concepts such as ‘alternative dispute resolution’ are inherently anarchic.

They promote resolving disputes without recourse to the coercive power of the state as applied by its judiciary and executed by its paramilitary, remembering that this coercive power is at best securing compliance through apprehension of lawful violence.

It is a resolution between people according to rules those people agree upon.

The further those rules are from relying on the state for legitimacy, the more anarchic they are.

Of course, to the extent that such agreements comprise demonstrations of asymmetrical power applied to the benefit of one party and the exploitation of another they’re probably not as anarchic as those which are founded on equity, if not parity, in power relations.

That is, it’s pretty hard to have a capitalist anarchism. Some might say impossible.

The core principle, though, that humans can between themselves without intervention of or reliance on the state agree on the basis of their relationship and how to resolve disputes, is at the heart of moving beyond litigation.

And it turns out that, just as tax accountants are the best at figuring out how the wealthy can ‘minimise’ their taxes, lawyers can be pretty good at helping people crystallise the rules they want to agree to be bound by and resolve disputes free from the threat of state intervention.

From what I’ve read, they can sometimes be pretty difficult friends to have. But just because your friend is difficult doesn’t mean you kill and eat them. So be nice to pigs.

Pigs also live for around fifteen years, so don’t get one if you’re going to simply get rid of it when you’re sick of the hassle.

The RSPCA says, for what it’s worth and for many that’s not much because they give accreditation to slaughterhouses which seems counterintuitive, that pigs ‘require plenty of mental stimulation or they will become bored and destructive.’

Animal rights activists are critical of owning pigs as pets. Keeping pigs that have been rescued from slaughter is a growing movement but those pigs are generally the huge 350kg animals. Don’t put one in your backyard.

These are good practical and ethical reasons for thinking twice about having a pig in your backyard.

All in all, unless you’re absolutely sure that you can be a good friend to a pig and be a good pet owner, don’t get a pig.

And if you can’t be a good pet owner, just steer clear of pets altogether.

People who want to keep pigs as pets in metropolitan areas (rather than sanctuaries for rescued animals) aren’t talking about something the size of Esther the Wonder Pig. Those guys got duped.

What they’re talking about are pigs that are about 60 centimetres at the shoulder, or about 90 kilograms at most.

So what are the rules? Bear in mind we’re looking at pigs in residential areas and not piggeries and that there are a bunch of other conditions you would have to comply with if you wanted a pig as a pet in a residential area.

This is just your starting point and it is a survey only of local laws. Citations are to the relevant local government authority’s Local Health Laws unless otherwise specified.

Anarchy

East Fremantle and Peppermint Grove don’t appear to have local laws governing the keeping of pigs. Good luck getting the Department of Agriculture to approve your registration there.

If you’re an anarchist (in which case this whole post is probably irrelevant) and you can find an anarchist in the Department as your collaborator it would appear that for once Peppermint Grove is your natural home.

Pigs may only be kept in rural zoned areas, but you can apply for an exemption: s.71.

Pig potential

For some councils you can seek approval to keep a large animal, which includes pigs, but the restrictions probably rule it out in many cases due to residential density:

Kalamunda

An application must be made to keep any animal, including large animals. The information to be included in an application to keep any animal is detailed and each application will be determined on its merits: ss 4.1, 4.4, 4.5.

Nedlands

Large animals may only be kept with approval of the council; and must be kept in a ‘stable’; and must not approach within 15 metres of a house or food premises: ss 68-70.

Bayswater, Perth, Subiaco, Victoria Park

Large animals may only be kept with approval of the council; and must be kept in a ‘stable’ which must be 15 metres from the nearest house; and must not approach within 15 metres of a house: Bayswater – ss 5.14-5.16; Perth – ss 68-69; Subiaco – ss 70-71; Victoria Park – ss 68-69.

Belmont, Vincent

Large animals may only be kept with the approval of the council; and must not approach within 15 metres of a house: Belmont – ss 67-68; Vincent (defined to include ‘miniature species of the same animal’) – ss 68-69.

Mundaring

Large animals may only be kept with the approval of the council; and must not be kept within 15 metres of a house: s. 5.3.2

Fremantle

Large animals may only be kept with approval of the council; and must be kept in a ‘stable’ which must be 15 metres from the nearest house; and must not approach within 15 metres of a house except the house of the owner which it may approach no closer than 6 metres: ss 71-72.

Melville

(Approval not required) Large animals must not be kept within 15 metres of a house: s.67.

Armadale

An application must be made to keep any farm animal. The information to be included in an application to keep any farm animal is detailed and each application will be determined on its merits: ss 30-33.

If you can find a property sufficiently large in any of these areas (some more likely than others) you can have a miniature pig.

Pig deal

The most miniature pig friendly councils are:

Cambridge, Cockburn, Joondalup, Wanneroo

You can keep one miniature pig under strict conditions. A miniature pig is defined as being no higher than 650mm at the shoulder and weighing no more than 55kg: Cambridge – ss 1.6 & 5.9; Cockburn – ss 2.1 & 2.28; Joondalup – ss 6 & 41; Wanneroo – ss 6 & 41.

Gosnells

You can keep up to 2 miniature pigs in a residential zone: ss2.8(1); 2.10. A miniature pig is defined as being no higher than 650mm at the shoulder and no more than 55kg: s.1.

Swan

Apparently you can keep any livestock in any part of Swan so long as it’s fenced: Consolidated Local Laws 12.22-12.24.

The Pig Short

If you want to have a miniature pig, then, your three options are:

Live in the Cambridge, Cockburn, Joondalup, Wanneroo or Gosnells local government districts and hope your pig doesn’t get too heavy, or

Live on a large property in a district where you can keep a fully grown pig, but just have a miniature pig instead, or

Lobby your council to amend their local laws in the same terms as those councils.

I write regarding the following Terms of Reference for the Committee’s inquiry:

C. Whether the Parliament should seek to amend section 44(i) (for example, to provide that an Australian citizen born in Australia is not disqualified by reason of a foreign citizenship by descent unless they have acknowledged, accepted or acquiesced in it);

D. Whether any action of the kind contemplated above should be taken in relation to any of the other paragraphs of section 44 of the Constitution, in particular sections 44(iv) and 44(v);

It is my strong view that for the Parliament to seek to amend the Constitution as contemplated in these Terms, absent any other proposed amendments, would constitute a self-serving exercise by Australia’s political elite.

The Australian Constitution, venerable as many hold it to be, contains significant flaws in need of correction.

I reject the pragmatism of incremental change. Two of the last three amendments to be passed, in 1977, were concerned with, in effect, amending the terms of employment of those exercising power on behalf of Australians, namely Senators and judges. The third expanded the franchise to citizens in Territories.

Australians have not been asked to contemplate any significant change to our system of government in decades, if at all since Federation. ‘Minimalist’ republicanism simply does not rate as ‘significant’. Indeed, the 1999 referendum is a study in the failure of adherents to the incremental change mantra.

We need a Constitution that establishes an Australian state free from legal shackles to its imperial heritage: our Constitution should be an act of its free peoples, not an Act of the Parliament of the United Kingdom. Our Head of State should be one of us, and the position held by that person ought to be what we acknowledge as we pay respect to the law on entry to a courtroom.

Our Constitution must include a Bill of Rights, because we have seen in the Northern Territory Intervention and the suspension of rights under the Racial Discrimination Act 1975 what happens when rights are merely legislated.

Our Constitution must pay due respect and regard to the original legal systems that applied in Australasia, the systems of its First Peoples.

It is in the context of these significant opportunities for constitutional reform that our leaders ought to contemplate a re-ordering of government in our country to deliver a 21st century approach to health and education responsibilities, so that we no longer suffer through buck-passing and waste.

We ought to ask ourselves whether the majoritarian cartel that is a consequence of our current representative system, founded in the Constitution, is delivering the quality of governance we deserve. Perhaps the growing disjunction between Government and Opposition and the electorate at large is a product of the fundamentally flawed pretence that mass parties can adequately present unified perspectives to electors all-too-aware of their internal divisions.

In short, Australians should have a thorough discussion about a new Constitution.

Not because its entirely broken (although parts of it certainly are), but because we should aspire to higher ideals of democratic representation rather than settle for the status quo just because it’s easier.

If amending section 44 forms part of a more comprehensive package of constitutional reforms, all well and good.

But presenting such an amendment, which only serves those who contemplate a political career, while failing to present any amendments that would deliver meaningful, positive change in the lives of many Australians is self-interest in leadership’s clothing.

In the light of suggestions that Japanese whalers have, through a third party, hired aircraft to conduct surveillance on anti-whaling group Sea Shephed, the ABC reports that Deputy Prime Minister Julia Gillard is seeking legal advice on the issue.

Professor Don Rothwell has already said, though, that there seems little recourse under existing law to stop Australian airspace from being used in this way.

Now, maybe some people would prefer that such activities not be conducted, and see something sinister at play. They may be right.

The issue appears to be whether or not a private person, in this case in the form of a corporation or other entity, should be able to use private resources to undertake surveillance of persons they feel may act contrary to their interests. In this case, such surveillance probably wasn’t as covert as it sometimes can be: it’s pretty hard to see how civil aircraft circling the Southern Ocean could be effectively concealed.

If we’re really worried about such private covert surveillance, though, surely such concern should extend to a whole range of ways in which private persons engage investigators to covertly monitor the activities of their competitors, their former spouses, and for any number of other reasons. If we’re going to draw a line on such activity, where should it lie?

In an earlier post I briefly discussed the issue of civil rights in Australia, particularly as to how we justify infringing rights in order to deal with specific segments of society. It’s a distinctly worrying trend, but when the decision of the Western Australian government to grant police the power to stop and search citizens without reasonable suspicion of wrongdoing is cast in terms of ‘cleaning-up the streets’ to the benefit of ‘decent families’, as opposed to violent thugs, it’s pretty hard to say ‘Hang on a minute’ without being accused of being with the terrorists.

But… hang on a minute.

The trend in Western Australia, and Australia generally, should be alarming its citizens. This isn’t just about physical intervention by police forces, but an active campaign of intimidation designed to inculcate a compliant population.

And it appears to be working.

As of 2004 Perth was home to the largest single closed-circuit television surveillance system in Australia. CCTV isn’t about catching crooks; its advocates argue that it is meant to act as a deterrent to crime. Much could be written about the value of deterrents in criminology, but let’s skip that for now. In this instance, deterrence can only mean one thing: intimidation. CCTV exists to intimidate citizens into obeying the law. As does the newly increased use of sniffer dogs in police patrols through the city.

But which laws?

It’s all very well to say that many of the current laws are beneficial, serve to reduce violence and theft and so on. There are some laws, though, that really only serve to modulate society. Laws about littering or spitting, skateboarding or busking. Intimidatory surveillance is intended to promote fear of prosecution for all unlawful activity regardless of the social merits of the laws that may be broken, laws the passage of which is frequently the result of political maneuvering that may diminish or devalue the interests of minority communities of interest. When we introduce systems of intimidation they serve to enforce a societal rigidity, which arguably makes people more compliant and willing to accept subsequent, more interventionist laws.

Like stop and search powers, for example. The Western Australian government has introduced legislation which would enable police officers to stop and search any citizen without the need to rely on a reasonable suspicion of wrongdoing. I guess it’s good that laws which increased the penalties for assaulting a public officer were passed before these new laws: readers can judge for themselves how likely it is that levels of violence against police will increase as a result of being physically searched for no apparent reason other than that an officer doesn’t like the cut of a person’s jib.

These powers are not, as some might suggest, the thin edge of the wedge. Western Australia’s legislators have hammered the thing in a good couple of centimetres already.

The problem remains, however, that the people that such laws are intended to be used against are actually bad people. I know there’s a whole bunch of romanticism in Australia associated with some criminal organizations, and I also know that drug laws in Australia are not sufficiently effectively enforced (if they ever could be) and so there are people (‘entrepreneurs’?) who are essentially just taking advantage of those circumstances. But let’s not forget that there’s a very high degree of human misery involved in the trade in which these groups so violently peddle.

It makes a bit of a mockery of concern for civil rights that the most ardent advocates for their preservation have such obvious and unabashed links with these interests. And if the only other voices raised against this progression towards ever increased surveillance and intervention are lawyers whose income largely comes from defending crooks, it’s going to continue to be pretty hard for the trend to be slowed, let alone halted or reversed.

Who from the not-tainted-by-association could or would take a stand on these issues? Until our parliamentarians hear it from the socially pure, it is virtually inevitable that future legislation will become increasingly harsh. If the current advocates, let’s be generous and call them ‘rights campaigners’, really want to make an impact, they need to start broadening the base of supporters of and advocates for their cause.

To date, treaties regulating the conventional arms industry have been largely limited to banning specific types of weapon, be that exploding bullets, chemical weapons and most recently landmines. Controlling the trade in more run-of-the-mill things like guns and bullets has only really been considered worth attempting in the past couple of years.

The good news of the past week, highlighted for me by UN Dispatch, is that the United States will join talks towards some form of conventional weapons treaty. A draft resolution calling for the commencement of talks on such a treaty has been co-drafted by Argentina, Australia, Britain, Costa Rica, Finland, Japan and Kenya. Previously the US had been inimicable to such a treaty, and there can be little doubt that the previous Australian government would not have sought to co-sponsor a resolution that may have put it at odds with the Bush presidency. How pleasing it is that current political circumstances in both countries now provide an opportunity for progress on this issue.

In its position paper on the proposed Arms Trade Treaty, the International Committee of the Red Cross says:

“Weapons are, by definition, probably the only legal product explicitly designed to cause harm to humans. The lack of regulation in the arms trade should be considered an unfortunate anomaly in the international legal system. A key objective then must be to protect human health and dignity by ensuring that the product we are speaking of is only available to those who use it in accordance with existing law, including international humanitarian law.”

“Stopping the flow of conventional weapons to conflict zones, terrorists, and insurgent groups requires robust international cooperation. Secretary Clinton’s announcement affirms that after years of sitting on the sidelines the United States will join international efforts to stem the flow of irresponsible or illegal arms transfers to groups that have brought misery and destruction to millions of people around the world.”

As usual, when Americans talk about weapons their Second Amendment (the right to keep and bear arms) becomes a sticking point. For this reason, negotiations will proceed on the basis that laws regulating internal controls on the ownership and use of firearms will remain the purview of national governments.

“No government is discussing a treaty that would ever impact the right to bear of arms, nor require regulation of domestic sales of arms… This is totally about international transfer of arms so that they don’t go to human rights abusers.”

There has been some criticism, as you’ll see in the cleveland.com link, of the US’ position that such a treaty must be agreed by consensus. These critics suggest that consensus is merely another form of veto, to which might be added that it is a recipe for minimalism. Yet, given the profligacy with which both States and non-state actors expend limited resources on arms and conflict, any participation and agreement by the US – responsible for 70% of the global arms trade last year – has got to be preferable to none.

In Australia, they came first for the terrorists… or, why don’t Australians care about rights?

Somehow it doesn’t quite have the same ring, but the sentiment behind the famous poem by Pastor Martin Niemöller (with apologies go to the deceased Pastor) about effects of the rise of Nazism in Germany on their political opponents and societal enemies appears to be driving criticism of enhanced police powers in parts of Australia.

The suggestion is that the progression in infringement of rights starting with suspected terrorists, followed by allegedly corrupt public officials, allegedly corrupt trade unionists, and now sought to be applied to organized crime (principally outlaw motorcycle gangs) is an ever-thickening wedge of which all right-minded Australians should be afraid. Here’s a couple of example from Australian bloggers.

Dave Stanford is pretty measured in his call for ‘ordinary Australians [to] examine government policy proposal with a critical eye and with thought to the potential consequences of such policy responses.’

The blogger known to me only as ‘Oz’ reported, and appears to agree with:

‘A related criticism, raised by the Greens, the Law Society of NSW and the NSW Council of Civil Liberties is that there’s nothing in the legislation stopping any cultural, social or political organisation being proscribed as illegal and thus banning members from associating.’

He (see Comments below for gender-confirmation) goes on to cite Jack the Insider’s ‘frustration at “how quickly Australians meekly acquiesce to the loss of these freedoms”’, agreeing that ‘We are pretty meek.’ In comments on the relevant article on his blog, Jack the Insider says ‘I know the thin end of the wedge arguments can be a bit tedious but…’ Quite.

Meanwhile, perhaps the most strident ‘who’s next’ line of argument I’ve seen comes from Nathan Hondros of the Western Patriot, who on the 19th of June wrote:

‘Don’t believe the lie that this is just about “bikies”. It is not. These laws will affect every one of us in ways it impossible to predict. It will give powers to the State that belong to regimes like North Korea, Burma or Iran. This legislation would be impossible in any nation with codified protection of human rights, such as the United States, or even the Hellenic Republic.’

I agree that many of the provisions of the respective regimes are authoritarian, but what all of these critics fail to do is come up with any vaguely reasonable suggestion as to which Australians other than alleged criminals will be affected by the infringement of asserted common law rights, some of which really have only ever arguably existed in Australia to begin with. Are they afraid of religious or political persecution? These seem to be the most obvious potential abuses, yet these four commentators at least are not so specific.

Basing a pro-rights argument on the defence of the rights of those that are widely accepted to be engaged in pretty nefarious activities, in my view, diminishes the weight of the argument of rights advocates. We end up with the somewhat twisted outcome of alleged organized crime figures as some of the strongest advocates of the introduction of a Bill of Rights. Does that really advance the cause?

Don’t get me wrong: I like human rights, I wish we had them. We don’t, and if you want to know why I’ll try to explain it in future posts. I think they’re vitally important, in desperate need of promotion and defence and in all other respects worth fighting for.

I’m just not convinced that human rights have ever innately existed. Given what we know about the ways that human beings have treated one another over thousands of years, including on the basis of religious strictures from which these rights supposedly derive, I find it much more credible to suggest that the majority of humanity finally found a means by which to express their exhaustion at – to appropriate a phrase – man’s humanity to man. The elucidation of human rights in the 20th century, then, is not a declaration of rights inherent to humanity but a declaration of the intent of many people to demand them.

Maybe that’s a bit of a dark view, but it’s important to recognize the implications of it for how we argue for rights in Australia and the world more generally in the 21st century. If rights are inherent to humanity, as many argue, then aberrant conduct that infringes these rights can be described as inhuman. We can dismiss that conduct as deviating from standards that are universally accepted. The outrage, so the argument goes, is that a person or people would consciously choose to act contrary to these universally accepted norms.

That’s a fair bit easier to argue than the proposition I’m advancing, because it constructs human rights observance as the norm. My view is that part of the reason we see rights infringed so regularly is that we still haven’t won the argument that these rights are universal, we haven’t convinced a sufficiently large number of people that we should all abide by these still-new, historically speaking, rights. If this is indeed the more accurate analysis of rights in Australia, then what we should be arguing about is whether or not law-abiding citizens should enjoy rights that do not now exist, rather than whether or not alleged criminals should be protected from the infringement of rights that do now exist.

This analysis leads to a number of sets of questions that I’ll look at in later posts, such as:

If we don’t have rights as such, what types of protections do we nonetheless enjoy in practice? If we already have these protections, how strong are they and do we need them to be augmented by rights?

Where we do not have other forms of protections on matters which might be protected by rights, do we really need protection? What is the real danger or threat posed in regard to these matters?

Ultimately, can a scheme of rights really protect individuals from their infringement by the modern state?

Are rights considered differently from the perspectives of adherents to parliamentary sovereignty and popular sovereignty respectively? What are the implications of these differences on the debate over whether we should adopt a legislative or constitutional Bill of Rights?

Last year a paper of mine on voluntary human shields was published in the Melbourne Journal of International Law. The paper was originally written for the ‘International Criminal Law’ unit I was studying for a Masters degree specializing in International Law at the Australian National University.

The title of the article is ‘Voluntary Human Shields, Direct Participation in Hostilities and the International Law Obligations of States’.

I’ve put up a link to the Austlii reproduction of the article, and reproduced the abstract below.

Voluntary human shields challenge accepted norms that have treated the civilian as a passive subject of, rather than an actor in, armed conflict. Later this year, the International Committee of the Red Cross will deliver a final report on the deliberations of a series of meetings held to discuss the definition of ‘direct participation in hostilities’ pursuant to Geneva Conventions III and IV and their Additional Protocols I and II. The Summary Reports of the ICRC deliberations of the meeting participants reveal that some experts consider it appropriate to class acting as avoluntary human shield as direct participation in hostilities. Some consider this classification to have altered the status ofvoluntary human shields in international humanitarian law. Arguably, however, classifying voluntary human shielding as direct participation in hostilities runs counter to international humanitarian legal principles